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Friday, May 20, 2011

In October, after months of anxiety, Caroline Barwick and her husband, Russell Huerta, celebrated the arrival of their son Sebastian’s third birthday. (Both are pictured.)

It was the day the San Francisco Unified School District became legally responsible for addressing Sebastian’s severe autism.

Ms. Barwick and Mr. Huerta met with school clinicians to discuss their son’s education and treatment. But the meeting did not go as they had hoped — the district offered Sebastian fewer than half of the therapeutic services recommended by three private doctors and did not offer a choice of schools.

“You’re reeling from what’s already been a tragic diagnosis,” Ms. Barwick said, “then it’s almost like you’re slapped across the face.”

The couple took legal action against the district. Last week, an administrative law judge criticized the district for its handling of the case and ordered it to reimburse Sebastian’s parents for about $55,000 they spent on his therapy and education during the dispute.

Ms. Barwick and Mr. Huerta are part of a growing number of parents of special-needs children who are battling the school district over federally mandated support. The stakes are high. The district is facing a $25 million budget shortfall, and the types of intensive services in dispute can run into hundreds of thousands of dollars per child.

There is not always agreement on what constitutes appropriate treatment. Disputes between the district and parents are initially addressed in Individualized Education Program meetings, and sometimes in hearings involving lawyers.

Thirteen legal actions — called requests for due process — were filed against the district in the first three quarters of this fiscal year. There were just five during the same period last year. Some families and lawyers believe the district is taking a more aggressive approach toward special-needs cases to hold down costs.

“In a perfect world with unlimited resources we could provide every single family everything they want,” Maribel S. Medina, the district’s head legal counsel, said in an interview.

More than 6,000 students with physical, emotional or developmental disabilities attend San Francisco public schools. The federal Individuals with Disabilities Education Act, passed by Congress in 1990, requires school districts to provide those children from age 3 with a “free and appropriate education.”

Rachel Norton, a San Francisco Board of Education commissioner who pays for her autistic daughter to attend a private school because she could not find an appropriate placement in the district, said school officials often weighed what would cost less: settling with families or litigating over services. “We have a lot of disputes, we spend a lot of money and we have terrible outcomes,” Ms. Norton said.

In September, independent auditors commissioned by the district to evaluate special education services found that parents and teachers frequently complained of children being placed in programs that did not serve their needs. “Many parents view ‘special education office’ staff who attend I.E.P. meetings as being obstructionists and more interested in controlling costs for the district than making sure that children receive the supports they need in order to succeed in school,” the auditors wrote in their final report.

Cecelia Dodge, assistant superintendent of special education, said at the time that school administrators agreed with the auditors’ findings and promised to revamp special education services districtwide.

But some parents and lawyers involved in special-needs cases said the district had only gotten more restrictive in allocating services.

“They really developed a policy that they felt that they were settling cases too easily,” said Michael Zatopa, a lawyer whose firm is handling Sebastian’s case and has worked on special-education disputes for three decades.

Education officials said the district had increased training and supervision across the special education department, including clinical staff who help determine placement and student services. They said the district had also placed more restrictions on offering special-needs students placement in private schools.

“I have no doubt that they are seeing a major shift in the district’s approach to special education, but it’s a good shift,” said Ms. Medina, the district’s chief legal counsel.

Since Ms. Barwick’s and Mr. Huerta’s first meeting with the district in October, they have been engaged in an emotionally and financially draining battle over Sebastian’s education. They have exhausted nearly all of their savings on therapy, private school tuition and legal fees.

Sebastian didn’t start talking until he was well past 2. His progress was short-lived; a month later, he stopped using words, his vocabulary replaced by grunts and other noises. He repeatedly opened and closed doors, fixated on his shadow and detached from those around him. Specialists diagnosed autism and recommended Applied Behavior Analysis therapy — which focuses on the relationship between a child’s behavior and environment — for 30 hours a week and a one-to-one aide in a mainstream preschool classroom.

Before meeting with the district, Ms. Barwick, who is an insurance underwriter, and Mr. Huerta, who works for a software start-up, asked three times to visit the district’s programs for children with autism but said their requests were ignored. At the October meeting, they said, district representatives dominated the discussion and failed to make a formal placement offer, as mandated by federal law and the California education code.

In subsequent mediations, the district was represented by the Southern California law firm of Leal and Trejo, which advocated for the district’s proposal: less than half the weekly therapy hours recommended by outside experts and a classroom assignment in which Sebastian would not be accompanied by an aide.

Mr. Huerta said that throughout the process, the couple felt stonewalled by a “juggernaut law firm-combo-school district.”

Gentle Blythe, a district spokeswoman, said the district “takes its obligation to offer services seriously, and we evaluate each child to determine” the appropriate level of education. District officials declined to talk specifically about Sebastian’s case.

Ms. Barwick described the district’s offer as: “Your kid has autism, you get package A.”

Negotiations dragged on for months as Ms. Barwick’s and Mr. Huerta’s expenses mounted. Mr. Zatopa, their lawyer, said the case was similar to others in which Leal and Trejo showed an uncommon willingness to litigate even when the evidence appeared to be stacked high against the district.

“I call it the gauntlet approach,” Mr. Zatopa said. “Make things difficult and expensive, and the parents will give up, and in many cases that’s true.”

William Trejo, a lawyer and a former special education teacher who has represented the district on several special-needs disputes, said in an interview that private lawyers representing the families often prolong the legal process to generate fees.

“When we have to come in at the back end of problems on a litigation track, that’s when the money is not put to best use,” he said.

Sebastian’s case came before an administrative law judge in March. In last week’s ruling, the judge, Michael Barth, criticized the rationale for putting the couple and their child through the seven-month ordeal.

“It is clear from the evidence that district had predetermined student’s placement and denied parents meaningful participation in the decision-making process,” Judge Barth wrote.

In addition to covering the couple’s legal fees, the district is required to arrange 30 hours of therapy a week and an aide for Sebastian.

About Me

I am full-time Mass Communication faculty at Towson University in Maryland and adjunct faculty in the City University of New York (CUNY) Master's in Disability Studies program.
I research media and disability issues and wrote a 2010 book on the subject: Representing Disability in an Ableist World: Essays on Mass Media, published by Advocado Press.
The media have real power to define what the public knows about disability and that's what I research.